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CITE

Unreported Judgment

Gilbert v Metro North Health and Hospital Service (No. 2)[2023] ICQ 20Hartigan DP
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Gilbert v Metro North Health and Hospital Service (No. 2)[2023] ICQ 20

INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Gilbert v Metro North Health and Hospital Service and Ors (No. 2) [2023] ICQ 020
PARTIES:	MARGARET MARY GILBERT (Appellant) V METRO NORTH HEALTH AND HOSPITAL SERVICE (First Respondent) MICHELLE GARDNER (Second Respondent) STATE OF QUEENSLAND (Third Respondent) SILVEN SIMMONS (Fourth Respondent) QUEENSLAND NURSES AND MIDWIVES’ UNION OF EMPLOYEES (Intervenor)
CASE NO:	C/2021/17
PROCEEDING:	Appeal
DELIVERED ON:	15 September 2023
HEARING DATE	24 March 2023
MEMBER:	Hartigan DP
HEARD AT:	Brisbane
ORDER:	The appeal is dismissed.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – where the appellant's claim seeking declarations and civil penalties was dismissed – where the appellant appeals – where the appeal considers the statutory construction of the terms "industrial association" and "trade union activity" within the meaning of those terms contained in the Industrial Relations Act 2016 (Qld) – whether the Nurses' Professional Association of Queensland ("the NPAQ") is an "industrial association" – whether the appellant engaged in "industrial activity" – whether the NPAQ is a "trade union" – whether the appellant engaged in "trade union activity"– where appeal dismissed.
LEGISLATION:	Acts Interpretation Act 1954 (Qld) s 14A Anti-Discrimination Act 1991 (Qld) s 279, s 290, s 291, s 295, s 596, s 602 Associations Incorporation Act 1981 (Qld) s 7, s 14, s 14B, s 32A Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32 Fair Work Act 2009 (Qld) s 352 International Covenant on Civil and Political Rights, art 22 Industrial Relations Act 2016 (Qld) s 4, s 278, s 279, s 282, s 285, s 287, s 289, s 291, s 295, s 306, s 308, s 557, s 596, s 602 Industrial Relations and Other Legislation Amendment Bill 2022 Human Rights Act 2019 (Qld) s 22, s 58
CASES:	Allingham v Australian Workers Union [1972] Qd R 218 Conde v Gilfoyle & Anor [2010] QCA 109 Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251 Gilbert v Metro North Hospital and Health Service & Ors [2021] QIRC 255 Gilbert v Metro North Hospital Health Service & Ors [2022] ICQ 35 Gunner v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 07 Hall v Jones (1942) 42 SR (NSW) 203 Kelly v Construction, Forestry, Maritime, Mining and Energy Union [2022] FCAFC 130; 294 FCR 295 Lake City Freighters Pty Ltd v Goram & Gotch Limited [1985] HCA 48; 157 CLR 309 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287; 128 ALR 353 Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 Norseman Amalgamated Distress and Injustices Fund v the Commissioner of Taxation of the Commonwealth of Australia [1995] FCA 1159 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049 R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507 Re McJannett; Ex parte Minister for Employment, Training and Industrial Relations [1995] HCA 31; 184 CLR 620 Stone & Spelta v Brisbane City Council [2015] QCAT 507 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 Tjungarrayi v Western Australia [2019] HCA 12 Transport Accident Commission v Treloar [1992] 1 VR 447 United Firefighters' Union of Australia, Union of Employees Queensland v Queensland Auxiliary Firefighters Association Inc [2018] QIRC 066
APPEARANCES:	Mr J Murdoch KC instructed by Saines Legal for the Appellant. Mr A Duffy KC with Mr E Shorten of Counsel instructed by Crown Law for the Respondents. Mr P McCafferty KC with Mr C Massey of Counsel instructed by Hall Payne, for the Queensland Nurses and Midwives' Union of Employees, intervening.

INDEX

1 Introduction6

2 The proceedings in the Commission8

2.1 Key findings11

3 Appeal to this Court13

4 Is the NPAQ an "industrial association" within the meaning of the IR Act?14

4.1 Relevant attributes of the NPAQ14

4.2 Appeal grounds 1(a) to 1 (f)15

4.3 Relevant principles with respect to the approach to be taken in statutory construction17

4.4 Consideration19

4.5 Further matters raised by Ms Gilbert with respect to the construction of s 27929

4.5.1 Ms Gilbert contends that provisions of the HR Act should be used as an aid to interpretation 29

4.6 Conclusion with respect to appeal grounds 1(a) to 1(f)31

5 Is the NPAQ a "Trade Union" within the meaning of the IR Act?32

5.1 Appeal grounds 1(l) to 1(n)32

5.2 Consideration33

5.3 Conclusion with respect to appeal grounds 1(l) to 1(n)41

6 Entitlement to declaratory relief pursuant to the HR Act41

6.1 Consideration of appeal grounds 1(o) to 1(q)41

6.2 Conclusion with respect to appeal grounds 1(o) to 1(q)41

7 Disposition of appeal42

8 Conclusion43

Reasons for Decision

1Introduction

[1]
This is an appeal from a decision^[1] of the Queensland Industrial Relations Commission ('the Commission') dismissing the Appellant's ('Ms Gilbert') application seeking declarations and civil penalties based on alleged contraventions of the general protections provisions^[2] of the Industrial Relations Act 2016 (Qld) ('the IR Act') and seeking declarations for alleged contraventions of the Human Rights Act 2019 ('the HR Act').

[2]
At the material times, Ms Gilbert was the Branch Secretary (Prince Charles Hospital) of the Nurses Professional Association of Queensland ('the NPAQ') and was also employed by the First Respondent as a Duty Nurse Manager, Hospital Wide Clinical Support Service at the Prince Charles Hospital.

[3]
On 24 November 2019, an article was published in The Sunday Mail newspaper entitled "Nurse decline is off the charts" ('the Article'). The Article attributed quotes to Ms Gilbert criticising nursing graduates and the nursing profession generally and identified her as the "Duty Nurse Manager at Prince Charles Hospital". Relevantly, the Article did not identify Ms Gilbert in any other capacity including, that she was either a member of, or in any other way acting on behalf of, the NPAQ, when expressing her views as reported in the Article. It was not in contention on the evidence before the Commission^[3] that Ms Gilbert did not seek the permission of her employer to be interviewed for the Article in her capacity as a Duty Nurse Manager, or, at all.

[4]
A Notice to Show Cause was subsequently issued to Ms Gilbert by the Second Respondent, as delegate for the First Respondent, asking Ms Gilbert to show cause as to why she should not be disciplined for making the comments attributed to her in the Article without proper authority ('the Notice to Show Cause').

[5]
Ms Gilbert contends that the Notice to Show Cause, together with an earlier step taken by the Respondents on 13 March 2019 to issue a Memorandum^[4] ('the Memorandum'), was adverse action within the meaning of s 282 of the IR Act. Further, Ms Gilbert contends that the adverse action was taken against her because she had workplace rights, namely, because Ms Gilbert was an officer or member of an "industrial association", and/or because Ms Gilbert engaged in, or proposed to engage in, "industrial activity" in contravention of s 291 of the IR Act. Ms Gilbert also contends contraventions of s 285 and s 287 of the IR Act.

[6]
Consequently, the status of the NPAQ and whether it is an "industrial association" and further, whether Ms Gilbert engaged in "industrial activity", are key considerations in this appeal, as they were before the Commission.

[7]
It is noted that the IR Act was amended before the hearing of this appeal^[5]. Those amendments include, inter alia, amendments to ss 279, 290 and 291 replacing the term "industrial association" with the term "industrial organisation". "Industrial organisation" is now a defined term in Sch. 5 to the IR Act with the consequence that any controversy with respect to the status of the NPAQ as an "industrial association" has been superseded by the amendments. However, the amendments do not effect this appeal as regard is to be had to the legislation in force at the time of the alleged adverse action.

[8]
Ms Gilbert also contends that adverse action was taken against her on the basis of her "trade union activity" in contravention of s 295 of the IR Act. Consequently, consideration will be had as to whether the NPAQ is a "trade union" in order to determine whether Ms Gilbert engaged in "trade union activity" within the meaning of the IR Act.

[9]
Ms Gilbert also contends contraventions of the HR Act on the basis that issuing the Notice to Show Cause and the Memorandum were incompatible with her human rights of freedom of expression and freedom of association which are said to arise in the context of Ms Gilbert's trade union activity. This will again require consideration of whether Ms Gilbert engaged in trade union activity.

[10]
This appeal was originally heard by his honour Davis J, President, on 7 December 2021. However, after the hearing, an application for recusal was made by Ms Gilbert. A decision in respect of the application was issued on 23 December 2022^[6], adjourning the hearing of the appeal to be heard by a member of the Court other than the President. I subsequently heard the appeal on 26 March 2023.

[11]
On 2 May 2023, Ms Gilbert, despite being legally represented, wrote directly to me. No other party or legal representative, including her own legal representatives, were copied into Ms Gilbert's correspondence.

[12]
The correspondence sought that I, as the member of the Court presiding over Ms Gilbert's appeal, disclose matters of a personal nature.

[13]
The subject matter of the information sought by Ms Gilbert included, inter alia, whether I had ever been a member of the Australian Labor Party ('the ALP') or another party or political association; whether I have ever donated funds to the ALP or another political party; whether I have ever worked for a firm or organisation that has represented a trade union with links to the ALP or that either, directly or indirectly, contributed funding to the ALP; whether as a solicitor or barrister I ever represented the State Government (presumably what is meant is the State of Queensland); whether I have ever performed pro bono work for the ALP or for trade unions; whether I have ever socialised with persons who are members of the ALP; whether I have ever socialised with persons who are union leaders and whose union, either directly or indirectly, support the ALP; and, whether I have ever presided over a case in which a member of the NPAQ or any other "independent non-ALP supporting worker union" was being represented.

[14]
It is relevant to note that the correspondence was sent after the appeal had been heard and, further, that during the course of the hearing of the appeal neither Ms Gilbert, nor her legal representatives, raised any of the matters outlined in her correspondence.

[15]
Consequently, on 3 May 2023, the Registrar of the Court wrote to Ms Gilbert's legal representatives copying in the legal representatives of all other parties attaching a copy of Ms Gilbert's correspondence. The Registrar advised Ms Gilbert's legal representatives that unless Ms Gilbert filed an application for me to disqualify myself, the appeal would be determined in the ordinary course. No application was filed by, or on behalf of, Ms Gilbert in the time frame requested by the Registrar, or, at all.

[16]
Accordingly, given that no application was filed, the appeal has proceeded in the ordinary course.

2The proceedings in the Commission

[17]
The proceedings were heard before the Commission over the course of seven days on 10 February 2020, 20 February 2020, 29 April 2020, 29 June 2020, 30 June 2020, 1 July 2020 and 11 September 2020. On 19 June 2020, an order was issued granting the Queensland Nurses and Midwives' Union of Employees ('QNMU') the right to be heard by way of making written and oral submissions.

[18]
The Commission's decision provided a summary of Ms Gilbert's claim and set out Ms Gilbert's position before the Commission as follows:^[7]

[44]
In her Statement of Facts and Contentions (SFC) filed on 11 March 2020, the Applicant alleged contraventions of the general protections provisions of the IR Act and makes ancillary claims under the Anti-Discrimination Act 1991 (the AD Act) and the Human Rights Act 2019 (the HR Act).

[45]
The essence of the Applicant's grievances is that her involvement with an incorporated association, now known as NPAQ was the reason for what she says was adverse action taken against her.

[46]
The first allegation of adverse action allegedly taken because of a workplace right is that of issuing the Memorandum by the Respondents against the Applicant because she was an officer or member of NPAQ.

[47]
The second allegation of adverse action allegedly taken because of a workplace right is that delivering the Show Cause Notice to the Applicant was adverse action taken because she had engaged in industrial activity on behalf of the NPAQ.

[48]
The alleged contraventions relate to the Show Cause Notice and are said to also relate to another matter occurring nine months previously, namely the issue of a Memorandum on 13 March 2019 entitled, "Nurses' Professional Association of Queensland Inc (NPAQ)" from Queensland Health (the Third Respondent) to the Hospital and Health Service Chief Executives and others, sent under the signature of Mr Silven Simmons (the Fourth Respondent) in his capacity as Acting Chief Human Resources Officer, Queensland Health.

[49]
The Respondents deny the alleged contraventions of the IR Act or the HR Act and also deny the Applicant is entitled to the relief claimed or indeed any relief.

[50]
The Respondents submit the general protections claims under the IR Act cannot succeed as the Applicant did not have the workplace rights or protections claimed and the relevant conduct of the Respondents was not unlawful. The ancillary claims made under the HR Act are variously misconceived or unsustainable.

(citations omitted)

…

[19]
The decision identified^[8] two allegations of adverse action relied on by Ms Gilbert who asserts that it was taken because she exercised a workplace right in contravention of ss 285 and 291 of the IR Act as follows:

issuing the Memorandum against Ms Gilbert because she was an officer or member of NPAQ which was an industrial association; and

delivering the Notice to Show Cause to Ms Gilbert because she had engaged in industrial activity on behalf of the NPAQ which was an industrial association.

[20]
Ms Gilbert contends that the issuing of the Memorandum contravened:

section 285 of the IR Act, as in doing so, the First Respondent took adverse action against Ms Gilbert because she was an officer or member of an industrial association;

section 289(1) of the IR Act, as in doing so, the First and Third Respondent knowingly or recklessly misrepresented Ms Gilbert's rights for her to be represented by her chosen industrial association;

section 291 of the IR Act, as in doing so, the First Respondent took adverse action against Ms Gilbert because she was an officer or member of an industrial association or she engaged in industrial activity within the meaning of s 290(a) and (b)(iii) of the IR Act; and

section 287 of the IR Act, as in doing so, the Third Respondent intended to coerce Ms Gilbert not to exercise a workplace right to engage in industrial activity.

[21]
Further, Ms Gilbert contends that the issuing of the Notice to Show Cause contravened:

section 285 of the IR Act, as in doing so, the First Respondent took adverse action against Ms Gilbert because she had engaged in industrial activity;

section 295 of the IR Act, as in doing so, the First and Third Respondents took adverse action against Ms Gilbert for engaging in trade union activity; and

section 287 of the IR Act, as in doing so, the First Respondent intended to coerce Ms Gilbert to not exercise a workplace right to engage in industrial activity.

[22]
Ms Gilbert also sought declarations for alleged contraventions of the HR Act as follows:

that the First and Second Respondent acted unlawfully in accordance with s 58(1)(a) of the HR Act by making a decision to issue the Notice to Show Cause which was not compatible with Ms Gilbert's right to Freedom of Expression (particularised by Ms Gilbert as stopping her from expressing views on matters concerned with her trade union activity); and

that the First and Second Respondent acted unlawfully in accordance with s 58(1)(a) of the HR Act by making a decision to issue the Notice to Show Cause which was not compatible with Ms Gilbert's human right of Freedom of Association (particularised by Ms Gilbert as including the right to form and join a trade union and engage in trade union activity).

[23]
It is apparent from the above, that the resolution of the NPAQ's status as either an "industrial association" or a "trade union" respectively, and, whether Ms Gilbert engaged in "industrial activity" or "trade union activity", respectively, are critical to Ms Gilbert's contentions.

2.1Key findings

[24]
The decision identified^[9] that Ms Gilbert accepted, subject to the application of the reverse onus of proof^[10], that she bears the onus of proving the facts alleged in her claim.

[25]
The Commission's decision^[11] correctly set out the matters that Ms Gilbert bears the onus of first proving before the reverse onus of proof is engaged:

the conduct that she alleges was taken in fact occurred;

the workplace right alleged exists (or she was relevantly protected);

the conduct constitutes adverse action for the purposes of s 282;

the alleged proscribed reason for that conduct is within one or more of the relevant proscribed categories; and

the evidence is consistent with the hypothesis that the respondent was actuated by a proscribed purpose.

(citations omitted)

[26]
For the reasons summarised further below, the Commission did not accept that Ms Gilbert established the matters set out in subparagraphs (a)-(e) above. That is, Ms Gilbert did not prove the existence of objective facts which she alleged provided the basis for the Respondent's alleged impugned conduct.

[27]
Ultimately, the Commission accepted the evidence of the decision maker as to the reasons for the issuing of the Notice to Show Cause as follows:^[12]

[209]
Notwithstanding my earlier findings concerning whether the NPAQ was an "industrial association" or "trade union", even if it could be established that the Applicant had a workplace right or was otherwise relevantly protected and adverse action taken, it would be at that point that the reverse onus imposed by s 306 of the IR Act would be engaged. However, when the evidence of the decision maker is considered in its entirety, it does not, in my view disclose a proscribed reason.

[28]
As noted above, the Commission disposed of the proceedings by dismissing the application. In doing so, the Commission found, in summary, that:

the NPAQ is not an "industrial association" and, that Ms Gilbert did not establish that she engaged in "industrial activity" for or on behalf of one and consequently Ms Gilbert was not a person afforded protection within the meaning of s 291 of the IR Act;

the NPAQ is not a "trade union" and, consequently, it follows that Ms Gilbert could not have engaged in "trade union activity" on the NPAQ's behalf within the meaning of s 295 of the IR Act;

the issuing of the Memorandum on 13 March 2019 was not for a proscribed reason;

the issuing of the Notice to Show Cause on 8 January 2020, was not for a proscribed reason;

the issuing of the Notice to Show Cause was exercised in accordance with s 187 of the Public Service Act 2008 (Qld)^[13] and therefore was authorised pursuant to s 282(6) of the IR Act;

the issuing of the Notice to Show Cause did not amount to adverse action within the meaning of s 282(1) of the IR Act;

Ms Gilbert failed to establish accessorial liability with respect to the First, Second and Fourth Respondents;

the issuing of the Memorandum on 13 March 2019 did not amount to a misrepresentation and consequently did not amount to a contravention of s 289 of the IR Act;

the issuing of the Notice to Show Cause did not amount to discrimination and consequently did not amount to a contravention of s 295 of the IR Act;

the issuing of the Memorandum and Notice to Show Cause did not amount to coercion for the purpose of s 287 and consequently did not establish a contravention of s 287 of the IR Act;

the Memorandum was issued on 13 March 2019, prior to the commencement of the HR Act and consequently the HR Act does not apply to the decision to issue the Memorandum; and

in issuing the Notice to Show cause, the First and Second Respondents did not act unlawfully in accordance with s 58(1)(a) and s 58(1)(b) of the Human Rights Act 2019 (Qld).

3Appeal to this Court

[29]
Section 557(1) of the IR Act confers on a person aggrieved by a decision of the Commission a right of appeal to this Court on the grounds of error of law or excess, or want, of jurisdiction. Section 557(2) of the IR Act provides that a person aggrieved by a decision of the Commission may appeal, with the court's leave, on a ground other than those grounds referred to in s 557(1) of the IR Act.

[30]
Ms Gilbert's application to appeal proceeds on the basis of s 557(1) of the IR Act and lists grounds 1(a) to 1(q) in support of her contentions that the Commission erred in law. Ground 2 contends a jurisdictional error.

[31]
Ms Gilbert did not apply, pursuant to s 557(2) of the IR Act, for leave to appeal on any other ground.

[32]
In summary:

grounds 1(a) to 1(f) attack the findings of the Commission that the NPAQ was not an "industrial association".

grounds 1(g) to 1(k) attack the Commission's findings with respect to whether certain action was adverse action;

ground 1(l) contends that the Commission erred in findings that members of the NPAQ were not members of a trade union;

grounds 1(m), (n) and (q) contend that the Commission erred in its construction of "trade union activity"; and,

grounds 1(o) and (p) complain the Commission erred in failing to find that the issuing of the Notice to Show Cause was unlawful pursuant to ss 58(1)(a) and 58(1)(b)^[14] of the Human Rights Act 2019 (Qld).

[33]
Ground 2 relies on grounds 1(a) to 1(q) as a basis to contend that the Commission failed to exercise its jurisdiction as it was required to do under Ch. 8 of the IR Act.

[34]
With respect to appeal grounds 1(g) to 1(k), each of those grounds are premised on, or arise out of, the allegations that adverse action was taken against Ms Gilbert, or that her workplace rights were misrepresented because she engaged in industrial activity, or to coerce Ms Gilbert not to exercise her workplace right to engage in industrial activity. Consequently, these appeal grounds will become irrelevant if it is found that Ms Gilbert did not engage in industrial activity.

[35]
With respect to appeal grounds 1(o) and 1(p), the human rights that have been identified by Ms Gilbert are those referred to in s 22(2), namely, the right to freedom of expression and freedom of association. Ms Gilbert alleges that each of these rights are said to arise in the context of Ms Gilbert's alleged "trade union activity". This again requires consideration as to whether the NPAQ was a "trade union" and whether Ms Gilbert engaged in "trade union activity".

[36]
It follows, that unless Ms Gilbert is able to establish, on appeal, that the NPAQ is either an "industrial association" or a "trade union" and that she engaged in "industrial activity" or "trade union activity", respectively, the appeal will fail.

4Is the NPAQ an "industrial association" within the meaning of the IR Act?

4.1Relevant attributes of the NPAQ

[37]
In considering the status of the NPAQ, in the context of whether it is an "industrial association" or a "trade union" within the meaning of the IR Act, the Commission identified and made findings with respect to the attributes that the NPAQ holds. These attributes will be considered in the context of whether the NPAQ is an "industrial association" or a "trade union", and for ease of reference, I have included them in this section before I embark on the task of statutory construction.

[38]
It was not contentious before the Commission that the NPAQ is an incorporated association under the Associations Incorporation Act 1981 (Qld) ('the AI Act'). Accordingly, the NPAQ holds the attribute of being an incorporated association and as such, it is a legal entity separate from its members.

[39]
Further, it was not contentious before the Commission that the NPAQ is not a registered organisation pursuant to Ch.12 of the IR Act. Accordingly, the NPAQ holds the attribute of not being a registered organisation pursuant to Ch. 12 of the IR Act.

[40]
During the hearing, evidence was given by Mr Tsingos, President of QNurses First Inc, now known as the NPAQ. The Commission found that despite Mr Tsingos being the President of the NPAQ that his evidence provided "limited assistance" with respect to "ownership of the 'NPAQ' business name, to whom the 'Service Providers Fees' mentioned in the annual returns were paid; or any details of apparent loans to Queensland Association Services Group Proprietary Limited and the NPAA".^[15]

[41]
Mr Maguire, Assistant General Secretary, NPAQ, also gave evidence as to the status of the NPAQ. This evidence was summarised in the decision as follows:^[16]

[114]
Mr McGuire in his affidavit deposes that he is the Assistant General Secretary of QNurses First Inc ABN 86 313 257 505 which has the exclusive license to use and exploit trademark 1989061 and the initials NPAQ as well as the words "Nurses Professional Association of Queensland".

(citations omitted)

…

[42]
The Commission found that the business names "Nurses Professional Association of Queensland" and "NPAQ" were only transferred to the NPAQ, after the events which were the subject of the proceeding before the Commission. As noted above, the NPAQ was formerly known as QNurses First Inc. Accordingly, the NPAQ has an attribute of operating under a business name which is currently the NPAQ.

[43]
The NPAQ does have a constitution^[17] and the objects and membership provision of the constitution was considered before the Commission and they will be considered further below.

4.2Appeal grounds 1(a) to 1 (f)

[44]
In summary, grounds 1(a) to 1(f) of the appeal contend that the Commission's finding that the NPAQ was not an industrial association and that Ms Gilbert did not engage in industrial activity is an error of law.

[45]
Relevantly, Ms Gilbert contends^[18], in summary, that:

the Commission erred in law in finding that the expression "an association of employees" make it plain that the legislature is contemplating a group of individual employees rather a single corporate or similar entity because:

the Commission fell into error by failing to construe the definition of "industrial association" in accordance with the Objects of Ch. 8 as set out in s 278 of the IR Act;

the Commission conflated the distinction of "industrial association" in s 279 with the definition of "association" in Sch. 5 of the IR Act and the definition of "association" in Ch. 11, Pt. 2, Div 4, SubDiv 10 of the IR Act;

the Commission took a narrow construction of "industrial association" and impermissibly limited the definition to unincorporated association of employees;

the Commission failed to have regard to ss 307 and 308 of the IR Act;

the definition of "association" in Sch. 5 has a general meaning and is not "an exclusive one";

the Commission erred in law where the Commission said that "the NPAQ's Constitution establishes something other than an organisation of employees. What is established is not, in my view, an association of employees. What is created is an incorporated body under the AIA Act."^[19] Ms Gilbert contended that the NPAQ has a legal status independent of its members because:

"the approach irrelevantly conflates the definition of 'organisation' which 'means a body registered under Chapter 12 as an organisation' and 'employee organisation' with 'an association of employees having as a principle purpose the protection and promotion of their interests in matters concerning their employment"';

the Commission erred in law by narrowly construing s 279(b) of the IR Act, and by failing to have regard to s 4(r) of the IR Act by not construing the provision in a way that gave effect to Australia's international obligations in relation to labour standards, namely the Freedom of Association and Protection of the Right to Organise Convention 1948, (No. 87) and the Right to Organise and Collective Bargaining Convention, 1948 (No. 98);

the Commission erred in placing significant weight on the contention that it was "not necessary as a condition of entry into membership" of the NPAQ to be employed, and that "[m]embership is open to Registered and Enrolled Nurses in Queensland irrespective of whether they are employed or not";

the Commission erred by finding that the eligibility of "Registered and Enrolled Nurses in Queensland irrespective of whether they are employed or not" was a relevant factor in finding the NPAQ was not an "Industrial Association" and is inconsistent with the definition of "employee" in s 58(1) of the IR Act, and, further, the eligibility provision of the NPAQ's constitution should be read in context and in particular with regard to the Objects;

The Commission erred in not considering Article 22 of the International Covenant on Civil and Political Rights ('ICCPR') in construing s 279 pursuant to s 22 of the HR Act; and

Ms Gilbert had the freedom to choose to become a member of "all forms of association".

[46]
It is apparent from the contentions above, that Ms Gilbert is critical of the approach adopted by the Commission to the construction of the term "industrial association" within the meaning of s 279 of the IR Act.

4.3Relevant principles with respect to the approach to be taken in statutory construction

[47]
The task of determining what is an "industrial association" within the meaning of the IR Act is a task of statutory construction.

[48]
The approach to be taken to ascertain the true meaning of words used is well settled.^[20] The approach requires that the text of the legislative provision in question be construed by reference to its context and its legislative purpose.^[21]

[49]
The relevant principles with respect to statutory construction were considered and summarised in R v A2; R v Magennis; R v Vaziri^[22] as follows:

[32]
The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

[33]
Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.

[34]
This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.

[35]
The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a “substantial miscarriage of justice” within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.

[36]
These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.

[37]
None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular , “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.

…

(citations omitted)

[50]
In SZTAL v Minister for Immigration and Border Protection^[23] the High Court identified that consideration of context may include consideration of statutory, historical and other context as follows:^[24]

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

…

(citations omitted)

[51]
Additionally, s 14A of the Acts Interpretation Act 1954 (Qld) provides that, when interpreting a provision, the interpretation that best achieves the purpose of the Act is to be preferred.

4.4Consideration

[52]
The term "industrial association" appears, inter alia, in ss 278, 279, 290 and 291 of the IR Act. These provisions fall within Ch. 8, Pt 1 of the IR Act.

[53]
Chapter 8 is entitled "Rights and responsibilities of employees, employers, organisations etc". Part 1 is entitled "General Protections".

[54]
Section 279 provides the definitions for the part and includes the definition of "industrial association".

[55]
In terms of the historical context, the general protection provisions were contained in the suite of changes introduced by the IR Act in 2016.

[56]
The Explanatory Notes to the Industrial Relations Bill 2016 ('the IR Bill') provides that the IR Bill introduces new protections for workers to, inter alia, "establish a general protections jurisdiction to protect workers against adverse action during employment or dismissal from employment; and workplace bullying remedies for state and local government employees similar to those available to private sector workers under the FW [Fair Work] Act [2009 (Cth)]" ('the FW Act').

[57]
Whilst the Queensland jurisdiction has had, at earlier points in its legislative history, enactments providing for freedom of association in various forms^[25], the purpose of the introduction of the 2016 provisions was to establish a general protections jurisdiction in Queensland which would ensure access to adverse action remedies for state and local government employees that was similar to that provided to national system employers and employees under the FW Act.

[58]
The general protection provisions in the IR Act largely mirror those contained in Ch. 3, Pt. 3-1 of the FW Act.

[59]
The statutory context of Ch. 8, Pt. 1 can be drawn from the whole of the IR Act including s 3 and s 4. Section 3 of the IR Act provides for the main purpose of the IR Act as follows:

3 Main purpose of the Act

The main purpose of this Act is to provide for a framework for cooperative industrial relations that—

is fair and balanced; and
supports the delivery of high quality services, economic prosperity and social justice for Queenslanders.

[60]
Section 4 sets out how the main purpose of the IR Act is primarily achieved as follows:

4 How main purpose is primarily achieved

The main purpose of this Act is to be achieved primarily by –

…

encouraging fairness and representation at work, and the prevention of discrimination, by recognising the right to freedom of association, the right to organise and the right to be represented; and
encouraging representation of employees and employers by organisations that are registered under this Act; and

…

assisting in giving effect to Australia's international obligations in relation to labour standards.

…

[61]
Relevant to s 4(r) of the IR Act, a legislative example lists several ILO Conventions that have been ratified by Australia. Ms Gilbert contends that, of those examples, the ILO Conventions ratified by Australia that are relevant to this proceeding are:

the Freedom of Association and Protection of the Right to Organise Convention, 1948, No. 87; and

the Right to Organise and Collective Bargaining Convention, 1949, No. 98.

[62]
The purpose of Ch. 8 Pt. 1 is set out in s 278 which relevantly provides:

278 Purpose of part

The purposes of this part are as follows—

to protect workplace rights;
to protect freedom of association by ensuring that persons are—

free to become, or not become, members of industrial associations; and
free to be represented, or not represented, by industrial associations; and
free to participate, or not participate, in lawful industrial activities;

to provide protection from workplace discrimination;
to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this part.

The protections contained in subsection (1) are provided to a person (whether an employee, an employer or otherwise).

[63]
It is clear that the purpose of the part is to provide protections that fall into three categories, being the protection of workplace rights, the protection of freedom of association and the protection from workplace discrimination.

[64]
Relevantly, freedom to be a member or not be a member of an industrial association, freedom to be or not be represented by an industrial association and freedom to participate or not participate in lawful industrial activities are each components of the freedom of association protection provided by the part. The protection of freedom of association provided for under this part is intended to be achieved by the prohibitions set out in ss 285, 291 and 295 of the IR Act.^[26]

[65]
The purpose of the part appears to be consistent with, and assists in the achievement of, the main purpose of the IR Act and how that is primarily achieved, relevantly, by the matters contained in ss 4(m), 4(n) and 4(r) of the IR Act.

[66]
The definitions to the part are provided for in s 279 and includes the definition of "industrial association". I will return to consider the construction of s 279 further below, but for present purposes, it is enough to note that the freedom of association protections afforded by the part are given colour and content by the definition of "industrial association" provided in s 279 and the definition of "engages in industrial activity" in s 290 of the IR Act. Accordingly, the way in which freedom of association is to be protected under the part requires an understanding of what is an "industrial association" and what is meant by "to engage in industrial activity".

[67]
By way of further context within the statute, and as noted above, the general protection provisions protect a person from adverse action being taken against them because they have or have not exercised a workplace right or propose to exercise or not exercise a workplace right.

[68]
Section 282 of the IR Act provides the definition of "adverse action" and s 284 of the IR Act sets out the meaning of "workplace right".

[69]
Section 285 of the IR Act provides the protection with respect to workplace rights by prohibiting a person from taking adverse action against another person because the other person has a workplace right or has or has not exercised the workplace right or proposes or proposed to exercise or not exercise a workplace right.

[70]
"Workplace right" is defined in s 284(1) of the IR Act as follows:

284 Meaning of workplace right

A person has a workplace right if the person—

has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or
is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
is able to make a complaint or inquiry—

to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
if the person is an employee—in relation to his or her employment.

In this section—

Industrial body means –

the commission; or
the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission’s functions and powers.

[71]
Section 287 prohibits a person from coercing another person as follows:

287 Coercion

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person or a third person—

to exercise or not exercise, or to propose to exercise or not exercise, a workplace right; or
to exercise, or to propose to exercise, a workplace right in a particular way.

Note –

This subsection is a civil penalty provision

Subsection (1) does not apply to protected industrial action.

[72]
Section 289 prohibits a person from mispresenting a workplace right as follows:

289 Misrepresentations

A person must not knowingly or recklessly make a false or misleading representation to another person about—

the workplace rights of the other person or a third person; or
the exercise, or the effect of the exercise, of a workplace right by the other person or a third person.

Note –

This subsection is a civil penalty provision

Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

[73]
Section 291 contains the protection with respect to freedom of association by prohibiting a person from taking adverse action against another because of their role with, or membership of, an industrial association or because they did, or did not, engage in, or propose to engage in, industrial activity as follows:

291 Protection

A person must not take adverse action against another person because the other person –

is or is not, or was or was not, an officer or member of an industrial association; or
engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of section 290(a) or (b); or
does not engage or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of section 290(c) to (f).

Note—

This subsection is a civil penalty provision.

[74]
Section 291 of the IR Act is aimed at protecting freedom of association by ensuring people are free to be or not be officers or members of an industrial association and free to engage or not engage in industrial activity. Further meaning is given to that protection by the definitions provided in s 290 and s 279, respectively.

[75]
The meaning of "engages in industrial activity" is provided for in s 290 of the IR Act as follows:

290 Meaning of engages in industrial activity

A person engages in industrial activity if the person -

becomes or does not become, or remains or stops being, an officer or member of an industrial association; or

does or does not -

become involved in establishing an industrial association; or

organise or promote a lawful activity for, or on behalf of, an industrial association; or

encourage, or participate in, a lawful activity organised or promoted by an industrial association; or

comply with a lawful request made by, or a lawful requirement of, an industrial association; or

represent or advance the views, claims or interests of an industrial association; or

pay a fee (however described) to an industrial association or to someone instead of an industrial association; or

seek to be represented by an industrial association; or

Note -

For subparagraph (vii), representation of a person by an industrial association includes a member, delegate or officer of an organisation making representations or advocating on the person's behalf. An organisation is a body that is registered as an organisation under chapter 12 - see schedule 5, definition organisation.

organises or promotes an unlawful activity for, or on behalf of, an industrial association; or

encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or

complies with an unlawful request made by, or an unlawful requirement of, an industrial association; or

takes part in industrial action that is not protected industrial action.

…

[76]
The activities referred to in s 290, each concern persons engaging in, or not engaging in, activities of, for, in, with, or on behalf of an industrial association. It follows, that in order to engage in industrial activity there must be a connection, in the terms of s 290, to an industrial association. That is, in order to engage in lawful industrial activity, there must be the necessary connection to an industrial association.

[77]
Section 279 provides the definition of "industrial association" as follows:

an employee organisation;

an association of employees having as a principal purpose the protection and promotion of their interests in matters concerning their employment;

an employer organisation;

an association of employers having as a principal purpose the protection and promotion of their interests in matters concerning employment; and

a branch of an industrial association under paragraphs (a) to (d).

[78]
It is not contentious that only subparagraphs (a) and (b) of the definition of "industrial association" are relevant to the appeal.

[79]
An aid to the interpretation of s 279 is provided by the inclusion of a legislative note to the definition of "industrial association" contained in s 279 which provides:

Note –

An organisation is a body that is registered as an organisation under chapter 12 – see schedule 5, definition of organisation.

…

[80]
Pursuant to s 14(4) of the Acts Interpretation Act, a note to a provision of the Act is part of the Act. Accordingly, the legislative note is relevant to determining the construction of the provision. The legislative note is relevant to subparagraph (a)^[27] of the definition of "industrial association" which refers to an "employee organisation".

[81]
Schedule 5 to the IR Act provides definitions for the IR Act. "Organisation" is defined in Sch. 5 as meaning "a body registered under Ch. 12 as an organisation".

[82]
Chapter 12 of the IR Act is entitled "Industrial organisations and associated entities". Chapter 12, Pt. 2, Div. 1 sets out how a registration application may be made. Section 602(1) of the IR Act, which falls within Ch. 12, Pt. 2, Div. 1, provides that an association may apply for registration as an employee organisation or employer organisation.

[83]
"Employee Organisation" is defined in Sch. 5 to mean "an organisation of employees". Given that organisation is a term defined by Sch. 5^[28], and adopting that meaning, an employee organisation is an organisation of employees registered pursuant to Ch. 12.

[84]
Relevantly, s 602(2) of the IR Act specifies that a corporation may only apply for registration as an employer organisation. It follows that a corporation may not apply for registration as an employee organisation.

[85]
The meaning of "corporation" is provided for in s 596 of the IR Act which defines "corporation", for the purpose of Ch. 12, to include, relevantly, an incorporated association under the AI Act.

[86]
Accordingly, I find that an employee organisation is an organisation of employees registered pursuant to Ch. 12 and does not include, relevantly, an incorporated association under the AI Act. I will now apply this construction to determine if the NPAQ is an "employee organisation".

[87]
On the evidence that was before the Commission, and which is before the Court on this appeal, it is not in contention that the NPAQ is an incorporated association under the AI Act and, accordingly, that the NPAQ falls within the definition of corporation for the purpose of Ch. 12. Consequently, given its status as a corporation, the NPAQ is not an association that is able to be registered pursuant to Ch. 12 as an "employee organisation". Accordingly, I find that the NPAQ is not an employee organisation and does not satisfy subparagraph (a) of the definition of "industrial association".

[88]
Within this context, it is then necessary to consider subparagraph (b) of the definition of "industrial association", and, relevantly, what is meant by the term "an association of employees having as a principal purpose the protection and promotion of their interests in matters concerning employment".

[89]
The phrase "association of employees" is not defined in the IR Act.

[90]
However, the term "association" is defined in Sch. 5 of the IR Act as follows:

association –

generally, means an unincorporated body or entity formed or carried on to protect and promote its members' interests; and
for chapter 11, part 2, division 4, subdivision 10, see section 478.

[91]
There is a general presumption that defined words in a statute have their defined meaning which is not displaced without good reason.^[29]

[92]
In this regard, it is noted that subparagraph (b) to the definition provides an exception to the general application of the definition so that s 478 (now repealed) applied for Ch. 11, Pt. 2, Div 4, SubDiv 10. No such exception was included with respect to Ch. 8 generally, or specifically, s 279 of the IR Act.

[93]
Ms Gilbert contends that the inclusion of the words "generally" in the definition of "association" indicates that it is a "general definition". However, the term "generally" is consistent with the reading of the entirety of the definition of "association" which includes an exception of the general meaning of the term as provided for in subparagraph (b). In any event, I am not satisfied that the word "generally" indicates that the general presumption is displaced. I reject Ms Gilbert's submissions in this regard.

[94]
Ms Gilbert also argues that the absence of a legislative note referring to the Sch. 5 definition of "association" indicates a contrary intention not to adopt the defined meaning. However, there is no requirement that all defined terms be referred to in a legislative note. The absence of a legislative note referring to the definition of "association" does not displace the general presumption that words used in the statute have their defined meaning.

[95]
With respect to the inclusion of the term "association" within subparagraph (b) of the definition of "industrial association", I find that there is no contrary intention, either within the provision itself or within the context of the IR Act, to use the term other than in its defined sense.

[96]
Returning to the definition of "association", an unincorporated body or entity is not recognised as a separate legal entity to its members and in this regard it can be distinguished from, for example, an incorporated body or entity which is recognised as a separate legal entity.

[97]
Relevantly, Ms Gilbert contends that it is an error to exclude an incorporated association in reliance on the defined term "association". In further support of this contention, Ms Gilbert argues that s 308(e) of the IR Act contemplates that the term "industrial association" can embrace entities other than unincorporated bodies and, by "the process of elimination", include incorporated associations.

[98]
Section 308(e) of the IR Act relevantly states:

308 Actions of industrial associations

For this part, each of the following is taken to be action of an industrial association—

…

if the industrial association is an unincorporated industrial association that does not have a committee of management—action taken by a member, or group of members, of the industrial association.

…

[99]
Ms Gilbert's position is that, having regard to the terms of s 308(e), which includes the words "if the industrial association is an unincorporated industrial association…", it can be inferred that the term industrial association also includes an incorporated industrial association. However, this argument is of limited assistance to Ms Gilbert as an aid to the construction of subparagraph (b) to the definition of industrial association. That is because other organisations that are industrial associations for instance, employer organisations as referred to in subparagraph (c) of the definition of industrial association, may be incorporated associations. I do not consider that s 308(e) assists in the construction of subparagraph (b) to the definition of industrial association.

[100]
The construction of "association" as not including an incorporated body or entity is consistent with the ordinary meaning of "association". The Macquarie Dictionary defines the term to mean, inter alia, "an organisation of people with a common purpose and having a formal structure" and "the connection of ideas in thought, or an idea connected with or suggested by a subject or thought".^[30] Such a construction is consistent with a group of employees who come together to pursue a common interest with respect to their employment.

[101]
Ms Gilbert contends that the NPAQ is an "entity formed or carried on to protect and promote its members' interests" and that consequently it falls within the definition of "association of employees". In doing so, Ms Gilbert must contend that the words "unincorporated body or…" that fall immediately before the word "entity" have no work to do. The meaning of the word "entity" is to be derived from its context.^[31] Here, it must be considered in the context of the words that immediately appear before it, being an "unincorporated body or…". In this context, entity does include an unincorporated entity. Such a construction has regard to the context within which "entity" appears, that is immediately following the words "unincorporated body or…" and provides coherence to the provision. I reject Ms Gilbert's submissions in this regard.

[102]
When read in the context of the provisions as a whole, it is clear that the purpose of the definition of "industrial association" is to include two types of employee representatives, being an employee organisation and an association of employees.

[103]
As noted above, an employee organisation is one that is registered pursuant to Ch 12 of the IR Act. In this respect, the definition of "industrial association" expressly includes a registered organisation.

[104]
The term "association of employees" refers to a group of employees who have come together to protect and promote their interests in the workplace, and relevantly, does not include an incorporated body or entity.

[105]
It does not follow, as posited by Ms Gilbert, that the definition of "association of employees" includes an incorporated organisation. Such a position is inconsistent with the purpose of the provision and the statutory context wherein registered employee organisations are, by virtue, of their registration, provided with certain rights and responsibilities under the IR Act.

[106]
It would be an absurd outcome if an unregistered organisation, with its own distinct corporate and legal status being separate and distinct from the relevant members, was considered an industrial association allowing it to have the benefit of certain protections afforded under the IR Act but not be burdened with any of the responsibilities of a registered organisation.

[107]
The definition of "industrial association" and "association of employees" are not ambiguous and the meaning of those terms do not lead to a result that is manifestly absurd or unreasonable. Consequently, there is no need to refer to the extrinsic material identified by Ms Gilbert to assist in the interpretation of s 279 of the IR Act.^[32]

[108]
Accordingly, I find that an "association of employees" connotes a group of employees who come together with the aim to protect and promote their interests. I further find that such association of employees does not include an incorporated body or entity. It follows that I find that the NPAQ, given its status as an incorporated association, is not an "association of employees".

[109]
As noted above, the definition of "association of employees" has a second limb being, "having as a principal purpose the protection and promotion of their interests in matters concerning employment".

[110]
Given my finding that because the NPAQ is an incorporated association and therefore it can not meet the definition of "association of employees", there is no need for me to make a finding as to its purpose. However, if I am wrong as to this conclusion, I do not consider that the NPAQ's principal purpose is to protect and promote the interests of employees in matters concerning their employment. This is because the objects, description and membership provisions of the NPAQ's constitution do not support a conclusion that the NPAQ's principal purpose is the protection and promotion of employees interests in matters concerning their employment^[33]. This is because membership of the NPAQ is conditional upon the member's registration as a registered or enrolled nurse as opposed to it being conditional upon members being employees.

[111]
Accordingly, given its status as an incorporated association, the NPAQ does not satisfy either of the two limbs in subparagraphs (a) and (b) to the definition of "industrial association" and, consequently, I find that the NPAQ is not an industrial association for the purpose of the general protection provisions of the IR Act.

[112]
Whilst Ms Gilbert's various contentions in support of appeal grounds 1(a) to 1(f) primarily concern the proper approach to the construction of s 279 of the IR Act, several contentions raised by Ms Gilbert go beyond the matters I have dealt with in the construction of the provision. That is because I do not consider such matters to be relevant, in the circumstances of this matter to the task of statutory construction. However, for the sake of completeness, I will address these additional matters below.

4.5Further matters raised by Ms Gilbert with respect to the construction of s 279

4.5.1Ms Gilbert contends that provisions of the HR Act should be used as an aid to interpretation

[113]
Ms Gilbert contends that the Commission erred by failing to have regard to s 22 of the HR Act which imposes an obligation to consider Article 22 of the ICCPR in construing s 279 of the IR Act.

[114]
Section 22 of the HR Act relevantly provides as follows:

22 Peaceful assembly and freedom of association

Every person has the right of peaceful assembly.
Every person has the right to freedom of association with others, including the right to form and join trade unions.

[115]
Ms Gilbert, in reliance on the Explanatory Notes to the Human Rights Bill 2019, asserts that s 22(2) of the HR Act is modelled on article 22 of the ICCPR and that is why regard should be had to article 22 of the ICCPR in the construction of s 279 of the IR Act.

[116]
Whilst s 22 of the HR Act recognises, inter alia, that every person has the right to freedom of association with others, including the right to form and join trade unions, it imposes no positive obligation, as asserted by Ms Gilbert, that regard should be had to s 22 of the HR Act and Article 22 of the ICCPR to assist in the interpretation of s 279 of the IR Act.

[117]
Article 22 of the ICCPR is extrinsic material.

[118]
While regard may be had to extrinsic material in circumstances where it can be established that there is an ambiguity in the provision or that the meaning produces an absurd or unreasonable result, I do not find that to be the case with respect to s 279 of the IR Act. I consider that s 279 is clear and unambiguous and consequently there is no need to consider extrinsic material in the interpretation of s 279. Consequently, the Commission did not err by not having regard to article 22 of the ICCPR as an aid to the construction of s 279 of the IR Act.

[119]
Ms Gilbert further argues that the Commission was required to comply with s 48(1) of the HR Act by interpreting s 279 of the IR Act in a way that is compatible with Ms Gilbert's human rights. Ms Gilbert contends that the failure to do so amounted to an error in law.

[120]
Section 48(1) of the HR Act relevantly provides:

48 Interpretation

All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.

[121]
A provision similar to s 48 has been considered in in Momcilovic v The Queen ('Momcilovic').^[34] In that case, the High Court considered s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) which is in terms similar to s 48 of the HR Act. Relevantly, Crennan and Kiefel J stated that:

Section 32 does not state a test of construction which differs from the approach ordinarily undertaken by courts towards statutes. Its terms identify an approach of interpretation which has regard to the terms and to the purpose of the statutory provision in question, as previously discussed. The statutory direction in s 32(1), that statutory provisions “must be interpreted in a way that is compatible with human rights”, is qualified by the recognition that such an interpretation is to be effected only “[s]o far as it is possible to do so consistently with their purpose”. This statutory direction seeks to ensure that Charter rights are kept in mind when a statute is construed. The direction is not, strictly speaking, necessary. In the ordinary course of construction regard should be had to other existing laws. The Charter forms part of the context in which a statute is to be construed. It will be recalled that Lord Hoffmann viewed the Convention in a similar way in Wilkinson. The process of construction commences with an essential examination of the context of the provisions being construed.

…

(citations omitted)

[122]
The decision in Momcilovic was considered in the decision of the Commission at paragraph [385] as follows:

Section 48(1) of the HR Act is not a "special" or "remedial" rule of interpretation. It does not require " … an interpretation of a statutory provision which [overrides] the intention of the enacting Parliament". As the High Court clarified in Momcilovic v The Queen in respect of the analogous s 48 of the Victorian Charter, s 32(1) does not require or authorise a court to depart from the ordinary meaning of a statutory provision, or the intention of Parliament in enacting the provision, but in effect requires the court to discern the purpose of the provision in question in accordance with the ordinary techniques of statutory construction.

…

(citations omitted)

[123]
The Commission's decision properly had regard to s 48(1) of the HR Act and identified that it does not operate so as to override the interpretation of a statutory provision in circumstances where the words of a statute are clear.

[124]
In any event, as discussed further below, Ms Gilbert has failed to establish that her human rights were invoked in the circumstances of this matter.

[125]
I consider that the approach of the Commission when considering the operation and effect of s 48 of the HR Act to be correct.

4.6Conclusion with respect to appeal grounds 1(a) to 1(f)

[126]
Consequently, my finding that the NPAQ is not an industrial association for the purpose of the general protection provisions of the IR Act results in a finding that Ms Gilbert did not engage in industrial activity. The reason for this, as noted above, is that the industrial activity relied on must have the necessary connection to an industrial association. It follows that on the basis of my finding that NPAQ is not an industrial association, Ms Gilbert can not be said to have engaged in industrial activity within the meaning of s 290 of the IR Act.

[127]
For these reasons, Ms Gilbert’s contentions as they relate to the proper construction of the terms "industrial association" and "industrial activity" within the meaning of the IR Act, and her contentions that the NPAQ is an "industrial association" and that she engaged in "industrial activity", must fail.

[128]
Appeal grounds 1(a) to 1(f) are dismissed.

5Is the NPAQ a "Trade Union" within the meaning of the IR Act?

5.1Appeal grounds 1(l) to 1(n)

[129]
Ms Gilbert further contends, in reliance on appeal grounds 1(l), 1(m) and 1(n) that the Commission's findings that the NPAQ was not a "trade union" and consequently that Ms Gilbert could not have engaged in "trade union activity" is an error of law.

[130]
Ms Gilbert argues that the Commission erred in law by adopting a narrow interpretation of "trade union" and "trade union activity" where it appears in s 295 of the IR Act by reasoning that an incorporated entity could not be a trade union because:

by finding that employed nurses who become members of the NPAQ were not members of a trade union, the Commission impermissibly limited the common law meaning of "trade union";

narrowly construing the term "trade union" to exclude an entity with corporate personality distinct from that of its individual members, would mean that registered organisations are not "trade unions" is a perverse outcome;

the Commission erred in reliance on the principals in Re: McJannett; ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland ('Re: Mc Jannett)^[35] in support of this conclusion;

the Commission's finding that the NPAQ's status as a separate legal entity to its members was fatal to the contention that it was a "trade union" is an error of law;

the Commission erred in the interpretation of the NPAQ rules, namely, the determination that the "objects contain no intention or plan to operate as an industrial association or to seek and maintain registration";

the Commission erred by not having regard to the definition of "trade union" contained in the Australian Human Rights Commission Act 1986 (Cth);

by limiting the definition of "trade union" and "trade union activity" within the meaning of s 295 of the IR Act, the Commission failed to have regard to s 4(r) of the IR Act; including that:

it did not construe the provision in a way that gave effect to Australia's international obligations in relation to labour standards as they do not restrict the definition of "trade union" or "trade union activity" to entities that are not incorporated, or associations that are not a legal entity, with a legal personality of its own, separate, and distinct from that of its members;

further, if "trade union activity" excluded the activity of incorporated entities, it would exclude organisations of employees registered pursuant to the IR Act and thereby incorporated;

the Commission was required to consider s 22(2) of the HR Act and Article 22 of the ICCPR in construing s 295 of the IR Act;

the Commission failed to consider Article 22 of the ICCPR and interpreted "trade union activity" in a way that impermissibly restricted Ms Gilbert's rights to freedom of association to engage in activity with a represent member of her chosen "trade union"; and

the Commission was required to comply with s 48(1) of the HR Act by not interpreting s 295 of the IR Act in a way that is incompatible with Ms Gilbert's human rights.

[131]
To place the contentions into context, regard must be had to Ms Gilbert's position that the issuing of the Memorandum and the Notice to Show Cause contravened s 295(1) of the IR Act on the basis of her "trade union activity".

[132]
Section 295(1) of the IR Act provides that an employer must not take adverse action against an employee^[36] because of the person's, inter alia^[37], "trade union activities".

[133]
In order for Ms Gilbert to successfully establish that section 295(1) was contravened because she suffered adverse action because of her trade union activity, she must first establish that the NPAQ is a trade union.

5.2Consideration

[134]
The task of determining the meaning of "trade union activity" is again a task of statutory construction. The principles of statutory construction referred to above are relevant to my consideration here.

[135]
The main purpose of the IR Act and the way in which the main purpose is achieved, as set out in s 3 and s 4 of the IR Act, are again relevant to my consideration.

[136]
As referred to above, ss 4(m) and 4 (n) provide that the main purpose of the IR Act is achieved by:

encouraging fairness and representation at work, and the prevention of discrimination, by recognising the right to freedom of association, the right to organise and the right to be represented^[38]; and

encouraging representation of employees and employers by organisations that are registered under the IR Act^[39].

[137]
Section 295 also falls within Ch. 8, Pt. 1 of the IR Act. As noted above, s 278 provides the purpose of the part which includes to provide protection from workplace discrimination.^[40]

[138]
The IR Act does not define the term "trade union activity" for the purpose of s 295 of the IR Act. Further, the IR Act does not provide a definition of "trade union". Indeed, neither of the terms are referred to in any other provision of the IR Act. It can be taken from this, and because the legislature did not adopt the terminology used elsewhere in the IR Act, that the terms "industrial association" and "trade union" do not necessarily have the same meaning.

[139]
The Explanatory Notes to the Industrial Relations Bill 2016 provides that s 295 reflects the intent of s 352 (discrimination) of the FW Act however it clarifies that the list of attributes referred to in s 295 has been adopted from s 7 of the Anti-Discrimination Act 1991 ('the AD Act'). "Trade union activity" is one of the listed attributes.

[140]
The AD Act does not provide a definition of the term "trade union activity".

[141]
Accordingly, it is necessary to consider the ordinary meaning of the words.^[41]

[142]
It is clear that the intent of s 295 of the IR Act is to protect an employee from workplace discrimination by prohibiting an employer from taking adverse action against an employee because of an attribute, namely, trade union activity. This is generally consistent with the purpose of the IR Act and the way that purpose is to be achieved as referred to above, although the term "trade union" is not used in s 4 of the IR Act.

[143]
The phrase "trade union" has been considered in a number of decisions. However, a significant proportion of those decisions have considered the term within the context of that term being defined by statute.^[42] I consider that those authorities are of limited relevance to the construction of the term in s 295 of the IR Act in circumstances where the legislature has determined not to provide a statutory meaning. On the same basis, I consider Ms Gilbert's reliance on the definition of "trade union" contained in the repealed Trade Union Act 1915 (Qld) and in the Human Rights Act 1986 (Cth) to be of no assistance.

[144]
The Commission below had regard to the following authorities that considered the phrase "trade union" as that term is ordinarily understood:^[43]

[101]
Norseman Amalgamated Distress and Injustices Fund v the Commissioner of Taxation of the Commonwealth of Australia (Norseman) involved an "appeal" under the Taxation Administration Act 1953 against a decision of the Commissioner. The principal ground of objection, and the issue raised on the appeal, was whether the income in respect of which the assessment issued was income of a trade union and, therefore, exempt from income tax under the Income Tax Assessment Act 1936.

[102]
Norseman was an unincorporated association formed and conducted pursuant to a written constitution. It was not registered under any act of the Commonwealth or of the State of Western Australia relating to the settlement of industrial disputes. Lee J held:

As the dictionaries confirm, it is still an essential part of the ordinary use of the term "trade union" that an organisation so described be one formed by workers to further the interests of the workers in their employment and although part of the meaning of the term may include an organization formed to provide financial aid to union members suffering adversity, the latter meaning is ancillary to, and dependent upon, the principal meaning described.

. . .

Whether the term "trade union" has a special and expanded meaning for persons in the industrial arena is unnecessary to decide for I remain persuaded, as was Kitto J in Victorian Employers Federation (at 393-395), that popular use of the expression "trade union" conforms to the dictionary definition set out in the Oxford Dictionary and that the term is used in that sense in para.23(f) of the Act.

[103]
It will be recalled that the High Court considered that "trade union" in this common or natural sense is a voluntary, unincorporated association. In McJannet the Court said:

Although the condition upon which registration of an industrial union could be granted under s 26(1) of the Queensland Act was that it answer the description of an 'industrial association' or a 'trade union of employees', neither of those terms, by itself, connotes the existence of a legal entity. The terms 'association' or 'union' connote a relationship among persons 'associated' or 'united' for a common purpose or to share a common interest. These are terms descriptive of a relationship (typically, a contractual relationship) between persons; they are not descriptive of entities invested with a legal personality.

(citations omitted)

[145]
The principles that are able to be drawn from these authorities indicate that a trade union has the following attributes:

a trade union need not be a registered organisation under federal or state law^[44];

a trade union is formed by workers to further the interests of the workers in their employment;

the terms "association" or "union" connote a relationship among persons "associated" or "united" for a common purpose or to share a common interest; and

the terms "association" or "union" are terms that are not descriptive of entities invested with a legal personality.

[146]
These principles are largely consistent with the ordinary meaning of the term "trade union". The Macquarie Dictionary defines "trade union" to mean "an organisation of employees for mutual aid and protection, and for dealing collectively with employers".^[45]

[147]
It follows that there is a nexus between an "association" or "union" of workers and with those workers holding a common aim of furthering their interests in their employment.

[148]
A trade union is indicative of a group of natural persons who have come together to form as a collective. For instance, a group of workers who come together at their workplace to agitate for improved working conditions.

[149]
It follows that a trade union does not describe an entity with its own separate legal personality.

[150]
Ms Gilbert contends that such a finding would also preclude an employee organisation from being a trade union. Whilst it is true that upon registration an employee organisation becomes incorporated for the purpose of registration^[46], s 596(2) of the IR Act identifies that in the case of limited exceptions,^[47] an organisation incorporated under s 611 is not a corporation. Accordingly, whilst an employee organisation becomes incorporated upon registration it is for the purpose of Ch. 12 (that is after it has been registered as an employee organisation and consequently becomes subject to regulation pursuant to the IR Act). Further, as noted above, an incorporated association may not apply to be registered as an employee organisation. This is in keeping with the common understanding of a trade union forming as an "association" or "union" of workers to further their interests in the workplace. It is then such a group that may apply to become a registered employee organisation. Accordingly, I do not consider this argument assists Ms Gilbert.

[151]
It is necessary then to consider whether the NPAQ has the attributes of a trade union in order to fall within the meaning of "trade union" for the purpose of my consideration of s 295 of the IR Act.

[152]
As noted above, whilst the NPAQ is not a registered employee organisation pursuant to Ch. 12, this does not, necessarily, preclude the NPAQ from being a trade union.

[153]
The NPAQ is an incorporated association and consequently a corporation within the meaning of s 596 of the IR Act. A corporation with its own separate legal personality is able to be distinguished from an association or union of workers. I consider that the NPAQ's status as an incorporated association is not an attribute consistent with it being a trade union.

[154]
Further, in considering the attributes of the NPAQ, it is convenient to consider the purpose and membership of the NPAQ as set out in its constitution.^[48]

[155]
Section 3 of the NPAQ constitution sets out the objects of the NPAQ as follows:^[49]

Objects

The objects of the Association are –

To provide tactical and strategic advice to Members, perform administrative management, promotional, marketing, legal and service functions including, where appropriate, guiding and supporting Members through industrial issues and beyond.
To represent Members of the Association in matters relating to their employment, there professional standing and their professional development.
To secure satisfactory remuneration and working conditions for Members of the Association.
To further the interests of the members in general by providing support and protection either on an individual or collective basis.
To, where possible, advocate and pursue Policy that will further enhance the professional careers, status and wellbeing of its Members.
To protect the legal rights of Members of the Association.
To represent Members in the matters of dispute with a fellow Member or fellow employee.
To extend relief by way of grants or loans to sick or distressed Members of the Association or to the dependants of deceased Members.
To ensure communication is maintained between the respective executives and the Member.
To provide where applicable financial assistance to all financial Members in matters resulting from the actions of the employer.
Represent the various classes of Members.
To act as the official bargaining agent on behalf of Members and other parties.

[156]
As can be seen from the objects, the NPAQ aims to represent members relating to, not only their employment, but also to their professional standing and their professional development. The NPAQ also aims to, where possible, pursue policy that will further enhance the professional careers, status and wellbeing of its members.

[157]
The NPAQ aims to protect a broad range of rights that it describes as "legal rights" of its members. It does not seek to limit such rights to those relating to employment or industrial relations. The NPAQ also aims to represent its members when they are in dispute with a fellow member or fellow employee. Relevantly, there is no object specified that the NPAQ aims to represent members in disputes with their employers in relation to their employment.

[158]
From the objects of the NPAQ, it is not immediately apparent that its aim is to collectively represent workers to further their interests in their employment or at the workplace. It appears that the NPAQ seems to aim to assist its members in matters outside their employment and the workplace. It also appears to aim to protect its members rights by protecting broad general "legal rights" and by improving their professional standing and professional development.

[159]
The Schedule to the NPAQ constitution sets out the description of the NPAQ and identifies the various classes of membership. The provisions assist in providing meaning to the objects, particularly, by providing meaning to the term "member" as it appears within the objects.

[160]
The NPAQ relevantly describes itself in the schedule to the constitution^[50] as follows:

Description of Association

The Association is a not for profit professional body representing the interest of Queensland Nurses in both the private and state sectors.

[161]
The membership provision of the NPAQ constitution relevantly states:

Classes of Membership and Conditions of Entry

The classes of Members of the Association shall be –

Ordinary Members who are –

Registered Nurses in Queensland; and
Enrolled Nurses in Queensland.

Inaugural Members who may be other people. The number of Members of this class is limited to 15 and membership can only be accepted up until the date of the first AGM.

[162]
Ordinary membership of the NPAQ is provided to persons who are "registered nurses" and "enrolled nurses" in Queensland. This membership class appears to be contingent upon a person's professional registration status as either a registered or enrolled nurse in Queensland. There is no reference to the employment status of ordinary members in this class of membership.

[163]
Further, there is an additional class of members who are described as "inaugural members", with the number of that class of membership being limited to 15 members. There is no requirement that the inaugural members be employees or workers.

[164]
Accordingly, in order to be an ordinary member of the NPAQ, a person must be a registered nurse or enrolled nurse. Nursing is a regulated profession and the reference to "registered nurse" and "enrolled nurse" refers to a nurses' professional registration. In Queensland, that means a person who has been registered as a registered or enrolled nurse. There is no similar condition of membership that a member of the NPAQ be a worker or employee. The cohort of the ordinary membership class, being registered or enrolled nurses, is consistent with how the NPAQ describes itself as a "professional body" rather than as, for example, a trade union or an "association" or "union" of workers.

[165]
The registration status of a registered nurse or enrolled nurse is not indicative of the employment status of that person. A person may choose to be registered as a registered nurse but also choose to not work as one. Accordingly, there is no nexus between being a member of the NPAQ and being an employee or worker.

[166]
Consequently, the NPAQ's constitution does not support a conclusion that the NPAQ is a trade union. The NPAQ describes itself as a non-for-profit professional body. The NPAQ's objects and membership appears to be aimed at representing members of the nursing profession with the aim of furthering them within their profession rather than representing a union of workers with the cause of furthering their interests in the workplace.

[167]
The NPAQ's corporate status, objects and membership do not indicate that it was formed as an association of workers with the common aim of furthering their interests in the workplace. Consequently, I find that the NPAQ does not hold the attributes of a trade union.

[168]
Further, for a person to engage in trade union activity, that activity must be connected or associated with a trade union. It follows from my finding that the NPAQ is not a "trade union", that it cannot be found that Ms Gilbert engaged in "trade union activity" for the purpose of s 295 of the IR Act. This is because any activity engaged in by Ms Gilbert does not have the necessary connection to a trade union on the basis that the NPAQ is not a trade union.

[169]
My finding that the NPAQ is not a "trade union" and that Ms Gilbert did not engage in "trade union activity" for the purpose of s 295 of the IR Act accords with the Commission's decision below.

[170]
Further, I do not consider that the Commission erred in its interpretation of the NPAQ's constitution. In this regard, appeal ground 1(l) misstates the Commission's findings. Relevantly, Ms Gilbert contends that the Commission found that "employed nurses who become members of the NPAQ were not members of a trade union…". There is no such finding of the Commission below. Relevantly, after considering the membership provisions of the NPAQ's constitution, the Commission found as follows:^[51]

[88]
What is immediately apparent is that it is not necessary as a condition of entry into membership to be employed. Membership is open to Registered and Enrolled Nurses in Queensland irrespective of whether they are employed or not.

[171]
Such a finding accords with the findings made above with respect to the membership provision of the NPAQ's constitution. Ms Gilbert has not established any error in the approach taken.

[172]
Several of Ms Gilbert's contentions go beyond matters relevant to the statutory construction of the terms "trade union" and "trade union activity" in the circumstances of this matter. In that regard, Ms Gilbert repeats the contentions she made that the Commission erred in not considering s 22 and s 48 of the HR Act when interpreting "industrial association" with respect to the Commission's interpretation of the term "trade union".

[173]
For the reasons referred to above, s 22(2) and s 48(1) of the HR Act do not impose the obligation asserted by Ms Gilbert. Further, Ms Gilbert has not identified any ambiguity or absurd or unreasonable result she relies on to establish that regard should be had to extrinsic material to aid in the interpretation of the provision. I do not consider that any such ambiguity or absurd or unreasonable result has been established that would have required the Commission to undertake consideration of the extrinsic material as submitted by Ms Gilbert.

[174]
In any event, Ms Gilbert's rights to freedom of association has not been limited. The finding that the NPAQ is not a trade union and consequently Ms Gilbert did not engage in trade union activity has the consequence that she is not provided with the protection afforded by s 295 of the IR Act. Ms Gilbert's submissions do not have proper regard to the purpose of Ch. 8, Pt. 1 and how that purpose is to be achieved by, inter alia, the operation of s 295 of the IR Act.

5.3Conclusion with respect to appeal grounds 1(l) to 1(n)

[175]
For the forgoing reasons, I find that the NPAQ is not a "trade union" and consequently, I find that Ms Gilbert did not engage in "trade union activity" within the meaning of s 295 of the IR Act.

[176]
Consequently, appeal grounds 1(l), 1(m), and 1(n) are dismissed.

6Entitlement to declaratory relief pursuant to the HR Act

6.1Consideration of appeal grounds 1(o) to 1(q)

[177]
Appeal grounds 1(o) to 1(q) relate to Ms Gilbert's request, before the Commission, that declarations be granted in terms which declared, relevantly, that in contravention of s 58 of the HR Act, the issuing of the Notice to Show Cause amounted to unlawful conduct by a public entity as it was not compatible with Ms Gilbert's human rights.

[178]
Section 58(1)(a) of the HR Act provides that it is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights. Section 58(1)(b) of the HR Act provides that it is unlawful for a public entity, in making a decision, to fail to give proper consideration to a human right relevant to the decision.

[179]
Accordingly, in order to establish that s 58(1)(a) and (1)(b) of the HR Act applies, Ms Gilbert must establish the relevant human rights.

[180]
Relevantly, the human rights said to have been invoked are Ms Gilbert's right to freedom of expression and her right to freedom of association. Ms Gilbert particularises that each of those rights arose out of her alleged engagement in trade union activity and/or her right to join a trade union.

[181]
As noted above, I have engaged in a process of statutory construction and have determined the meaning, which includes the ordinary meaning, of the term "trade union" and to engage in "trade union activity". I have found that the NPAQ is not a "trade union" within the ordinary meaning of that term and I have also found that Ms Gilbert did not engage in "trade union activity" for the purpose of s 295 of the HR Act. These findings are equally relevant to my consideration as to whether Ms Gilbert's human rights, as particularised by her, have been invoked. I find that Ms Gilbert's human rights, as particularised by her, have not been invoked.

6.2Conclusion with respect to appeal grounds 1(o) to 1(q)

[182]
On the basis of my findings above, I conclude that Ms Gilbert's human rights have not been invoked in the circumstances of this matter on the basis that the NPAQ is not a trade union and further because Ms Gilbert has not engaged in trade union activity.

[183]
Consequently, I dismiss appeal grounds 1(o) to 1(q).

7Disposition of appeal

[184]
On the basis of my findings and the dismissal of appeal grounds 1(a) to 1(f) and 1(l) to 1(q) it is not necessary for me to consider any other appeal grounds. That is because Ms Gilbert has not established the objective facts necessary to establish that adverse action was taken against her by the issuing of the Notice to Show Cause and the Memorandum.

[185]
I do not consider that Ms Gilbert has established any relevant error in the Commission's decision which is the subject of the appeal.

[186]
Relevantly, I have found on the proper construction of s 279 of the IR Act that the NPAQ is not an "industrial association" within the meaning of that provision. Further, I have found on the proper construction of s 290 of the IR Act, any activity alleged to have been engaged in by Ms Gilbert is not "industrial activity" because such activity, if it occurred, does not have the requisite connection to an industrial association.

[187]
On the basis of my finding that the NPAQ is not an "industrial association" and Ms Gilbert did not engage in "industrial activity", Ms Gilbert's contentions that the Respondents contravened ss 285, 287, 289 and 291 are not made out. This accords with the findings of the Commission below. Consequently, appeal grounds 1(a) to 1(f) are dismissed.

[188]
Further, I have found that on the proper construction of s 295 of the IR Act, that Ms Gilbert did not engage in "trade union activity". This finding arises out of the proper construction of the term "trade union" and my subsequent finding that the NPAQ is not a trade union. It follows, that I have found that, on the proper construction of s 295 of the IR Act, any activity alleged to have been taken by Ms Gilbert is not "trade union activity" because such activity, if it occurred, does not have the requisite connection to a "trade union".

[189]
On the basis of my finding that the NPAQ is not a trade union and consequently, that Ms Gilbert did not engage in trade union activity, Ms Gilbert's contentions that the Respondents contravened s 295 of the IR Act is also not made out. Similarly, this accords with the findings of the Commission below. Consequently, appeal grounds 1(l) to 1(n) are dismissed.

[190]
Further, with respect to appeal grounds 1(o) to 1(q), on the basis of my findings that the NPAQ is not a trade union and that Ms Gilbert did not engage in trade union activity, I find that Ms Gilbert's human rights, as particularised by her, were not invoked. This also accords with the findings of the Commission below. Accordingly, appeal grounds 1(o) to 1(q) are dismissed.

[191]
It follows from these findings, that none of the contraventions of the general protection provisions of the IR Act or the basis for the grant of the declarations sought pursuant to the HR Act have been made out by Ms Gilbert. Consequently, it is unnecessary for me to consider appeal grounds 1(g) to 1(k) and I dismiss those grounds.

[192]
Appeal ground 2, in reliance on appeal grounds 1(a) to 1(q), contends that the Commission failed to exercise its jurisdiction insofar as it was required to do so under Ch. 8 of the IR Act. For the same reasons referred to in dismissing the appeal grounds above, I do not consider that Ms Gilbert has established that the Commission failed to exercise its jurisdiction insofar as it was required. I find the Commission made no jurisdictional error and appeal ground 2 is dismissed.

8Conclusion

[193]
Consequently, I issue the following order:

The appeal is dismissed.

Footnotes

[1] Gilbert v Metro North Hospital and Health Service & Ors [2021] QIRC 225 ('the decision').

[2]Industrial Relations Act 2016 (Qld), Ch 8, Pt 1.

[3] Gilbert v Metro North Hospital and Health Service & Ors [2021] QIRC 225, [8].

[4] On 13 March 2019, a Memorandum was issued by the Fourth Respondent, on behalf of the Third Respondent, entitled "Nurses' Professional Association of Queensland Inc (NPAQ)" addressed to the Hospital and Health Services Chief Executives and others.

[5] Amended by the Industrial Relations and Other Legislation Amendment Bill 2022 on 3 November 2022.

[6] Gilbert v Metro North Hospital Health Service & Ors [2022] ICQ 35.

[7] Gilbert v Metro North Hospital and Health Service & Ors [2021] QIRC 255, [44]-[50].

[8] Gilbert v Metro North Hospital and Health Service & Ors [2021] QIRC 255, [25].

[9] Ibid [33].

[10] As set out in s 306 of the IR Act.

[11] Ibid [35].

[12] Gilbert v Metro North Hospital and Health Service & Ors [2021] QIRC 225, [209].

[13] Now repealed.

[14] The Appeal Notice, as noted by Ms Gilbert in her submissions dated 16 September 2021, erroneously refers to s 51(1)(a) and (b) of the HR Act.

[15] Gilbert v Metro North Hospital and Health Service & Ors [2021] QIRC 255, [107].

[16] Ibid [114].

[17] Exhibit 4 – Affidavit of Mr Phil Tsingos dated 5 May 2020.

[18] Ms Gilbert's outline of submissions filed 5 November 2021.

[19] Associations Incorporation Act 1981 (Qld).

[20] R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507, [32].

[21] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78]; Lake City Freighters Pty Ltd v Goram & Gotch Limited [1985] HCA 48; 157 CLR 309, 436 at 461.

[22] (2019) 269 CLR 507.

[23] [2017] HCA 34; (2017) 262 CLR 362 per Kiefel CJ, Nettle and Gordan JJ.

[24] Ibid [14].

[25] See for example, Industrial Organisations Act 1997 (Qld) and the Workplace Relations Act 1997 (Qld).

[26] These provisions are discussed further below.

[27] and s 279 (c) of the IR Act.

[28] There is a presumption, which is not to be displaced without good reason, that defined words in a statute have their defined meaning. See Kelly v Construction, Forestry, Maritime, Mining and Energy Union [2022] FCAFC 130; (2022) 294 FCR 295 at [113].

[29] Kelly v Construction, Forestry, Maritime, Mining and Energy Union [2022] FCAFC 130; 294 FCR 295 at [113].

[30] Macquarie Dictionary (online at 15 September 2023) "association" (def 1 and def 6).

[31] The noscitur a sociis rule.

[32] Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287; 128 ALR 353 at 362.

[33] Exhibit 4 – Affidavit of Phil Tsingos dated 5 May 2020; See also further discussion at [162]-[167] herein.

[34] [2011] HCA 34; (2011) 245 CLR 1

[35] (1995) CLR 620.

[36] Or a prospective employee

[37] Section 295(1) also lists the attributes of sex, relationship status, pregnancy, parental status, breastfeeding, age, race, impairment, religious belief or religious activity, political belief or activity, lawful sexual activity, gender identity, sexuality or family responsibilities.

[38] Industrial Relations Act 2016 (Qld), s 4(m).

[39] Ibid s 4(n).

[40] Ibid s 278(1)(c).

[41] Stone & Spelta v Brisbane City Council [2015] QCAT 507 at [26].

[42] See for example, Allingham v Australian Workers' Union [1972] Qd R 218.

[43] Gilbert v Metro North Hospital Health Service & Ors [2021] QIRC 255, [101]-[103].

[44] Although, if it is, that is indicative of it being a trade union.

[45] Macquarie Dictionary (online at 15 September 2023) "trade union".

[46] Industrial Relations Act 2016 (Qld), s 611.

[47] Except for Ch. 12 (other than s 618, 625 and 674 and the State Penalties Enforcement Act 1999 Pt. 3 – Pt. 5).

[48] Exhibit 4 – Affidavit of Phil Tsingos dated 5 May 2020.

[49] Exhibit 4 – Affidavit of Phil Tsingos dated 5 May 2020.

[50] Exhibit 4 – Affidavit of Phil Tsingos dated 5 May 2020, s 3 and Schedule subsection (3).

[51] Gilbert v Metro North Hospital and Health Service & Ors [2021] QIRC 255, [88].

Editorial Notes

Published Case Name:
Gilbert v Metro North Health and Hospital Service and Ors (No. 2)
Shortened Case Name:
Gilbert v Metro North Health and Hospital Service (No. 2)
MNC:
[2023] ICQ 20
Court:
ICQ
Judge(s):
Hartigan DP
Date:
15 Sep 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Allingham v Australian Workers' Union	[1972] Qd R 218	2 citations Jump To Cite 1 - [1972] Qd R 218 Cite 2 - [1972] Qd R 218
Conde v Gilfoyle	[2010] QCA 109	1 citation Jump To Cite 1 - [2010] QCA 109
Elliott v Kodak Australasia Pty Ltd	(2001) 129 IR 251	1 citation Jump To Cite 1 - (2001) 129 IR 251
Elliott v Kodak Australasia Pty Ltd	View on:JADE[2001] FCA 1804	1 citation Jump To Cite 1 - [2001] FCA 1804
Gilbert v Metro North Hospital Health Service	[2021] QIRC 255	6 citations Jump To Cite 1 - [2021] QIRC 255 Cite 2 - [2021] QIRC 255 Cite 3 - [2021] QIRC 255 Cite 4 - [2021] QIRC 255 Cite 5 - [2021] QIRC 255 Cite 6 - [2021] QIRC 255
Gilbert v Metro North Hospital Health Service	[2022] ICQ 35	2 citations Jump To Cite 1 - [2022] ICQ 35 Cite 2 - [2022] ICQ 35
Gunner v Minister for Immigration and Ethnic Affairs	(1997) 50 ALD 07	1 citation Jump To Cite 1 - (1997) 50 ALD 07
Hall v Jones	(1942) 42 SR (NSW) 203	1 citation Jump To Cite 1 - (1942) 42 SR (NSW) 203
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd	View on:JADE[1985] HCA 48	2 citations Jump To Cite 1 - [1985] HCA 48 Cite 2 - [1985] HCA 48
Kelly v Construction, Forestry, Maritime, Mining and Energy Union	View on:JADE[2022] FCAFC 130	3 citations Jump To Cite 1 - [2022] FCAFC 130 Cite 2 - [2022] FCAFC 130 Cite 3 - [2022] FCAFC 130
Kelly v Construction, Forestry, Maritime, Mining and Energy Union	(2022) 294 FCR 295	1 citation Jump To Cite 1 - (2022) 294 FCR 295
Kirby v Workers' Compensation Regulator	[2021] QIRC 225	3 citations Jump To Cite 1 - [2021] QIRC 225 Cite 2 - [2021] QIRC 225 Cite 3 - [2021] QIRC 225
Minister for Immigration and Ethnic Affairs v Teoh	View on:JADE(1995) 183 CLR 273	2 citations Jump To Cite 1 - (1995) 183 CLR 273 Cite 2 - (1995) 183 CLR 273
Momcilovic v The Queen	View on:JADE[2011] HCA 34	2 citations Jump To Cite 1 - [2011] HCA 34 Cite 2 - [2011] HCA 34
Momcilovic v The Queen	View on:JADE(2011) 245 CLR 1	2 citations Jump To Cite 1 - (2011) 245 CLR 1 Cite 2 - (2011) 245 CLR 1
Norseman Amalgamated Distress and Injustices Fund v The Commissioner of Taxation of the Commonwealth of Australia	View on:JADE[1995] FCA 1159	1 citation Jump To Cite 1 - [1995] FCA 1159
Project Blue Sky v Australian Broadcasting Authority	View on:JADE(1998) 194 C.L.R 355	2 citations Jump To Cite 1 - (1998) 194 C.L.R 355 Cite 2 - (1998) 194 C.L.R 355
Qantas Airways Ltd v Chief Commissioner of State Revenue	View on:JADE[2008] NSWSC 1049	1 citation Jump To Cite 1 - [2008] NSWSC 1049
R v A2	View on:JADE(2019) 269 CLR 507	3 citations Jump To Cite 1 - (2019) 269 CLR 507 Cite 2 - (2019) 269 CLR 507 Cite 3 - (2019) 269 CLR 507
Re McJannett; Ex parte Minister for Employment, Training and Industrial Relations	View on:JADE[1995] HCA 31	1 citation Jump To Cite 1 - [1995] HCA 31
Re: McJannet; ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland )	View on:JADE(1995) CLR 620	1 citation Jump To Cite 1 - (1995) CLR 620
Stone v Brisbane City Council	[2015] QCAT 507	2 citations Jump To Cite 1 - [2015] QCAT 507 Cite 2 - [2015] QCAT 507
SZTAL v Minister for Immigration and Border Protection	View on:JADE(2017) 262 CLR 362	2 citations Jump To Cite 1 - (2017) 262 CLR 362 Cite 2 - (2017) 262 CLR 362
Sztal v Minister for Immigration and Border Protection	View on:JADE(2017) HCA 34	2 citations Jump To Cite 1 - (2017) HCA 34 Cite 2 - (2017) HCA 34
Tjungarrayi v Western Australia	View on:JADE[2019] HCA 12	1 citation Jump To Cite 1 - [2019] HCA 12
Transport Accident Commission v Treloar	View on:VR(1992) 1 VR 447	1 citation Jump To Cite 1 - (1992) 1 VR 447
United Firefighters' Union of Australia, Union of Employees, Queensland v Queensland Auxiliary Firefighters Association Inc.	[2018] QIRC 66	1 citation Jump To Cite 1 - [2018] QIRC 66

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Hitchcock v State of Queensland (Office of Industrial Relations) (No. 5)	[2024] QIRC 276	2 citations
Johnson v State of Queensland (Queensland Health)	[2024] QIRC 102	2 citations
Queensland Police Union of Employees v HSFirst Inc. (No. 2)	[2023] QIRC 284	2 citations

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Gilbert v Metro North Health and Hospital Service (No. 2)[2023] ICQ 20